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Colorado Court of Appeals Opinions
February 13, 2014

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2014 COA 12. No. 12CA0004. People v. Nagi.
Violation of Right to Speedy Trial—Competency Evaluation—Crime of Violence—Sentencing.

On January 10, 2011, while represented by the public defender, defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust–pattern of abuse. In March 2011, defendant filed a pro se motion seeking to obtain a different attorney, which was denied. On June 1, 2011, the original defense counsel filed a motion to continue the case; defendant objected. The court gave defendant the option of proceeding pro se or waiving the speedy trial date and proceeding with either the original defense counsel or alternate defense counsel. Defendant chose to proceed pro se and was found competent to proceed after a court-ordered competency evaluation. A jury convicted him as charged.

On appeal, defendant contended that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. A defendant must be brought to trial within six months of entering a not-guilty plea. However, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. Here, the record supports the conclusion that defendant might not have been competent to proceed to trial. Therefore, the court did not abuse its discretion in ordering a competency evaluation, and the period of time to complete the evaluation was properly excluded from the speedy trial period.

Defendant also contended that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes. Defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. Therefore, the prosecution was not required to prove a crime of violence to aggravate the sentencing range in accordance with the crime of violence statute. Although the sentencing range should not have been aggravated as an extraordinary risk crime, the sentence fell within the corrected sentencing range. Therefore, the judgment and sentence were affirmed.

2014 COA 13. No. 13CA0517. Fleury v. IntraWest Winter Park Operations Corp.
Ski Resort—Avalanche—Wrongful Death—Negligence—Inherent Risk—Ski Safety Act.

This case arose from the death of Christopher Norris, who was killed by an avalanche while skiing on a run known as Trestle Trees/Topher’s Trees (Trestle Trees) at Winter Park Resort, which is operated by IntraWest Winter Park Operations Corporation(IntraWest). Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children, asserted claims for negligence and wrongful death. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act (Act) and therefore IntraWest was not liable for Christopher Norris’s death.

On appeal, Fleury contended that the district court erred in determining that the avalanche was an inherent risk of skiing under the Act. The Act provides examples in defining the inherent dangers and risks of skiing; however, this list in not exclusive. Giving effect to the plain meanings of the words in the Act, an avalanche fits the definition of inherent dangers and risks of skiing.

Fleury also argued that IntraWest was liable for her husband’s death because it failed to close Trestle Trees and failed to warn skiers about the avalanche danger on the day he was killed. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at Trestle Trees or to close it on the day in question. Therefore, the district court properly dismissed Fleury’s claims against IntraWest, and the judgment was affirmed.

Colorado Court of Appeals Opinions

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